Muller v. Decker Coal Co., 94-35956
| Decision Date | 04 June 1996 |
| Docket Number | No. 94-35956,94-35956 |
| Citation | 87 F.3d 1321 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. James MULLER and Jean Muller, husband and wife; Marcia Gillis, fka Marcia Muller; Sharon Freeman; Linda Carr, Plaintiffs-Appellants, v. DECKER COAL COMPANY, a joint venture consisting of Kiewit Coal Properties, Inc., and Western Minerals, Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: BROWNING, WRIGHT and T.G. NELSON, Circuit Judges.
The parties are familiar with the facts so we need not recite them here.
Accrual of both claims, for personal injury and damage to real property, is governed by Montana Code Annotated § 27-2-102, which states:
(1) For the purposes of statutes relating to the time within which an action must be commenced:
(a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action....
(2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.
(3) The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if:
(a) the facts constituting the claim are by their nature concealed or self-concealing; or
(b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause.
"The issue of when a particular plaintiff's cause of action in tort accrued is ordinarily a question of fact for the jury to determine with the defendant bearing the burden to prove this affirmative defense." Sternhagen v. Dow Co., 711 F.Supp. 1027, 1031 (D.Mont.1989).
The Mullers were aware of the possibility that their problems were related to the blasting at the mines as early as perhaps 1986, and certainly by 1989, when they sent the letter to Decker. However, it was arguably not until 1993 that the Mullers had sufficient knowledge of the causation of the injuries to trigger the statute of limitations. In January 1993, Dr. Phillips wrote in a letter to the Mullers' attorney that he believed "the cattle were probably exposed to oxides of nitrogen, developed brisket edema and expired due to the exposure." In June 1993, Dr. Merchant wrote a letter to Dr. Saunders in which he stated he could "very reasonably conclude that [Mrs. Muller's] breathing problems have been related to exposure to oxides of nitrogen produced by blasts at the nearby mine."
In Hando v. PPG Industries, Inc., 771 P.2d 956 (Mont.1989), the plaintiff had lost consciousness while doing some...
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